Court of Appeal (WA)|2005-06-17|Before: Wheeler JA

Beaton v Wray-Watts [2005] WASCA 114 (17 June 2005)

BEATON -v- WRAY-WATTS [2005] WASCA 114 (17 June 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Possession of an altered firearm - Whether reg 26 of Firearms Regulations 1974 (WA) invalid

Beaton v Wray-Watts [2003] WASCA 314

R v Olsen; Ex parte Vahlberg and Vahlberg (1975) 11 SASR 156

Devries v Australian National Railways Commission (1993) 177 CLR 472

1 WHEELER JA: This matter involves applications for leave to appeal from decisions of Pullin J delivered 15 December 2003, which we heard together with the argument in relation to the appeals, in case leave should be granted. Given that the applications and the argument in respect of the appeals were heard together, the most practical course is to consider whether each appeal should be allowed on any ground. If it should, leave should obviously be granted, and if it should not, the granting of leave would be pointless.

2 The background facts are set out in the reasons for decision of Pullin J in pars [1] to [9] inclusive of his reasons for decision in Beaton v Wray-Watts [2003] WASCA 314. I accept those as being correct and do not repeat them in these reasons. Mysteriously, although there is an application for leave to appeal, there are no grounds of the proposed appeals. The application book does, however, contain copies of various orders of Pullin J granting leave to appeal to a single Judge against the decisions of the Magistrate. It appeared from the applicant's submissions that it was intended that the Court would consider these grounds afresh, on the basis that it is suggested that his Honour erred in his approach to all of them. While the applicant's outline does not refer to any grounds, it has a variety of headings setting out certain issues which the applicant apparently considers would arise in the proposed appeal. It is convenient, then, to deal with these issues.

3 In order to understand this issue, it should first be noted that the firearm in question was a rifle which had been cut down into a handgun and which was wrapped up in an opaque plastic shopping bag, black and white in colour and apparently resembling a Myers bag, or something similar, which was found inside a sea container. Her Worship found that the sea container was in an area used daily by the applicant, and that he had access to the sea container himself two or three times, at least, in a day. That sea container was also found by her Worship to be near his workshop bench where he sat to work, in close proximity to the counter and other tools, and so on. It was found to be well lit and, while the contents of the bag were not able to be seen through the bag, the bag itself was found to be visible on the floor space within the sea container, according to photographs which were tendered to her Worship. None of those findings is in dispute.

4 According to the evidence of Constable Wray-Watts, when the applicant was shown this firearm by the police, and asked who it belonged to, he said he did not know. However, his defence at trial was that he had met a person called Damien Mueller in 1998. He met Mr Mueller again in 1999, and then Mr Mueller came to his shop very frequently. At some stage, the applicant began allowing Mr Mueller into the shop behind the counter. Mr Mueller came in on one occasion and said that he had had an argument with his mother and had been asked to leave home, and asked whether he could bring some items to leave at the applicant's premises. The applicant agreed, and Mr Mueller had brought some items into the shop. The applicant did not check those items, although some were in gun bags, which, although he did not open them, by their shape suggested that they contained firearms. Mr Mueller brought some other items at the same time, and other people at other times also went behind the counter. For those reasons, the applicant said that he "presumed" that the firearm in question belonged to Mr Mueller. As Pullin J observed, this is perhaps surprising behaviour for a person who holds a firearm dealer's licence. Nevertheless, that was his evidence.

5 The description I have just given of the evidence at trial is taken from the reasons for decision of Pullin J. The applicant submits, however, that Pullin J described the facts in a way which erroneously suggests that there was an inconsistency between what was said by the applicant to the police and the applicant's testimony. It is submitted that, on her Worship's finding, the applicant did suggest at the time at which he was shown the firearm that it belonged to Mr Mueller. In that case, there would be consistency between what the applicant said to police and what he later said, although what he later said was an amplification of it.

6 The short answer to that submission is that it misunderstands, in my view, her Worship's reasons. At page 179 - 180 of the application book, is to be found the passage from her Worship's reasons which deals with this issue. Having explained what the defendant's evidence at trial was about his agreement with Mr Mueller and Mr Mueller's behaviour, her Worship said that, "Certainly the defendant did not say anything at the time that the handgun was found". She went on to explain that he had, when asked by the officers whether there was anything else they might be interested in, directed them to the sea container and pointed to certain bags with guns, but not to that particular plastic bag. In relation to the conversation that the applicant had with Mr Mueller about having to leave home and storing valuables at the applicant's home, her Worship said:

"... the first time that that has been raised is at the hearing today. Now, it was not something that was put to Officers Plant or Watts who were primarily, as I understand the evidence, the officers who were speaking to the defendant, and asking questions of him. That was never put to them along with, 'It might be Damien's' or, 'It might belong to Mueller', or comments of that like which the defendant seems to have made to Watts and Plant and which they have relayed to the court."

7 It is plain, in my view, that her Worship was there expressing the view that the applicant had not, at the time at which that plastic bag was found and that firearm was shown to him, indicated to the officers that it might belong to Mueller. Her Worship's references to comments such as "It might belong to Mueller", is a reference to comments of that kind which the applicant made in relation to other items found at the house. That is clear from the words "... which they have relayed to the court". Her Worship was contrasting the applicant's ready explanation in relation to other items, with his inability to attribute any ownership to this particular item.

8 Her Worship's findings in that respect are consistent with the evidence as revealed by the transcript. In her evidence-in-chief, Constable Wray-Watts said at page 23 of the application book that the applicant showed her certain items in the safe and "it was established they did belong to somebody else". At page 32 of the application book, she agreed, during the course of cross-examination, that that "other person" was Damien Mueller. In relation to this firearm, however, her evidence, at page 24 of the application book, was, "I then asked Mr Beaton who it belonged to and he said he didn't know". At page 33 of the application book, she said that she had taken a wooden box and a bag out of the sea container and that they belonged to Mr Mueller, although it is not clear how that was established.

9 It was put to her during cross-examination at pages 29 - 30 of the application book, that, when he was asked about this firearm, the applicant said, "I haven't seen it before, I guess it's Damien's". Her response was that she did not remember him saying the words, "I guess it's Damien's". She went on to say that it was not with the items that he indicated belonged to Mr Mueller.

10 The Customs Officer, Mr Plant, also gave evidence which is harder to follow, because portions of a tape which was not transcribed in the transcript, were played to him from time to time. However, as I follow his evidence, he agreed that he had spoken to the applicant and that the applicant had said that he had known "this guy" for a little while and it was possible that he had left a particular item there. He agreed that the applicant had named Mr Mueller as the "guy" that he had known. Mr Plant said that he remembered that there was a conversation along those lines which he thought was in relation to certain Sten guns, or information concerning them. His evidence was that the applicant kept saying that the material in bags inside the sea container was Mueller's; in the context that seems to me to be a reference to the gun bags. I do not understand him to be saying that the applicant had suggested that this gun could be Mueller's.

11 The applicant's evidence by contrast at page 126 of the application book was that Constable Wray-Watts asked him about the altered firearm and that his response was to say, "I presume it's Damien's".

12 As I understand her Worship's finding, then, it was to the effect that the explanation which was given at trial had never been put by the applicant to the officers who interviewed him at the scene. Her Worship disbelieved the applicant to the extent that he indicated that he had suggested to the officers interviewing him at the scene that the firearm had belonged to someone else. She clearly considered that the lateness of the account indicated a recent invention.

13 This was not a case of a person exercising a right to silence when questioned by the officers, but a case of a person giving a bare denial in circumstances where, in relation to other items, he had suggested that ownership was in another person. Her Worship clearly considered that if the firearm had been Mueller's, he would have suggested that to the officers at the time, as he had done with the other items. That fact, and the control which the applicant was in a position to exercise over the item because of its location, its position in the sea container, the visibility of the bag containing it, and so on, led her Worship to the conclusion which she reached. Additionally, although she did not in terms say so, her Worship's finding must have been based in part on an adverse view of the applicant's credibility; as I have noted, she accepted the evidence of the constable in preference to his.

14 Justice Pullin found that her Worship correctly directed herself in relation to the drawing of an inference as to the applicant's state of mind, and as to the matters necessary to be proved in order to prove possession. I agree. Justice Pullin also concluded that her Worship had not accepted the applicant's denial of knowledge of the firearm and that that was a finding which depended to a substantial degree on credibility and was open to her Worship. I agree with that also. It follows, therefore, that this issue is not one in relation to which the applicant can succeed.

Ultra vires argument - SJA 1025, 1026 of 2003

15 It is submitted that the charges in respect of possessing prohibited firearms should have failed because reg 26 of the Firearms Regulations 1974 (WA) is invalid.

16 At the relevant date, s 6 of the Firearms Act 1973 (WA) ("the Act") read as follows:

"(1) The Governor, on the recommendation of the Commissioner, may make regulations to prohibit the acquisition, sale, possession, or use of any firearm, silencer or other contrivance of a similar nature, or ammunition, whether licensed under this Act or not, either -

(a) absolutely; or

(b) except upon and subject to such conditions, restrictions, and limitations, for such purpose or purposes, and in such place or places, as the Governor considers desirable in the public interest,

having regard to the especial potentially dangerous nature of that kind of firearm, contrivance or ammunition and the need to exercise special precautions in relation thereto, or otherwise in the public interest.

(1a) Notwithstanding that any licence may have been issued, permit granted, or approval given under this Act in relation to any firearm or ammunition of that kind, the Governor, on the recommendation of the Commissioner, may, in relation to any firearm or ammunition which is, because of its nature or characteristics, of a kind requiring the exercise of special precautions and which is named, or falls within a description given in, or is otherwise identified by, those regulations, make regulations -

(a) directing that no licence, permit or approval relating thereto shall be issued or given;

(b) directing that no licence, permit or approval relating thereto shall be capable of being renewed after a date specified in the regulations; or

(c) otherwise making such provision as may be expedient in relation thereto,

and for the purposes of section 22 the exercise of any power pursuant to those regulations shall not be taken to have been a decision made by or on behalf of the Commissioner.

(2) Regulations made under subsection (1) may provide penalties for offences against the regulations, and may also provide that any firearm or ammunition relating to any such offence shall be forfeited to the Crown whether or not any person is lawfully entitled to the possession thereof.

(3) Where no penalty is specifically provided, a person who contravenes a regulation made under subsection (1) commits an indictable offence and is liable, on conviction, to imprisonment for 5 years.

Summary conviction penalty: Imprisonment for 18 months or a fine of $6000."

Regulation 26 relevantly provides:

(1) Subject to subregulations (2) and (2a), the acquisition, sale, possession or use of a firearm or ammunition specified in the Table to this regulation is absolutely prohibited.

(2) This regulation does not apply to a member of the armed forces of the Crown in the performance of his duties, or to any other member of a disciplined force approved by the Commissioner, or to the acquisition or possession of such a firearm or ammunition by The Western Australian Museum for purposes authorised by the Museum Act 1969.

(2a) This regulation does not apply to a firearm of category D if the firearm is licensed under the Act and what is done is in accordance with the licence."

17 The table referred to in reg 26(1) specified, inter alia, "a firearm of category D". A category D firearm is a "self loading centre fire rifle designed or adapted for military purposes". The effect of s 11B of the Act, reg 6A and sch 3 is that the Commissioner of Police has to be satisfied a category D firearm is required for Commonwealth or State Government purposes before a licence can be issued in respect of it.

18 The primary ultra vires argument is that the words of the opening paragraph of s 6(1) "whether licensed under this Act or not" mean that regulations can only prohibit the acquisition, etcetera, of a particular category of firearms as a whole, without discriminating between firearms which may be licensed and those which may not. It follows that s 6(1)(b) does not permit as a "condition, restriction", etcetera, any condition which relates to the existence or non-existence of a licence. That, the applicant submits, is the "natural and ordinary" meaning of the words in the opening paragraph of s 6(1).

19 That submission is supported by the argument that, to read s 6 as authorising reg 26, would lead to a result inconsistent with the Act, because the Act in s 19 already creates an offence of possession of a firearm without a licence. Under s 19, the maximum penalty for aggravated possession without a licence is 18 months or $6000. It is submitted that the impugned regulation "subverts" that provision, because the maximum penalty for possession of a prohibited firearm is 5 years. Reference is made to R v Olsen; Ex parte Vahlberg and Vahlberg (1975) 11 SASR 156 at 162, where Bray CJ held a regulation invalid because it imposed a "liability to ... heavier and different punishment than that which the Act expressly authorises".

20 However, it seems to me that the "natural and ordinary" meaning of the words "whether licensed under this Act or not" is that the regulation may extend to a firearm even if the firearm is licensed under the Act. That is, the words are intended to make it clear that, despite the fact that other provisions of the Act provide for a person to obtain a licence enabling the possession of a firearm, regulations under s 6 may prohibit the possession of that firearm.

21 Such an understanding seems to me to accord not only with the ordinary meaning of the words, but also to lead to a sensible and coherent legislative scheme. The final paragraph of s 6(1) provides that regulations may be made "having regard to the especial potentially dangerous nature of that kind of firearm ...", and it is not difficult to accept that the legislature may have considered that, if a view was formed that a type of firearm fell into that category, it should be open to a regulation made in respect of it to prohibit its possession even if a person had a licence for it. Such an understanding is also consistent with s 6(1a), which allows the Governor to make regulations of a specified type "notwithstanding that any licence may have been issued ...".

22 So far as the alleged inconsistency with s 19 is concerned, this is not a case of a regulation dealing with the same circumstances, but imposing a heavier and different punishment. The provision dealing with licensing offences is of a general nature, applying to all firearms, and the gravamen of the offence is possession of a firearm without a licence. Although certain characteristics either of the offender or of the firearm will aggravate the penalty, the type of firearm is not a feature of the offence. By contrast, s 6 is concerned with the prohibition of firearms which are considered to fall into a limited category of being especially potentially dangerous. A stricter and different regime is created for them. By virtue of the combined effect of that section, reg 26, and s 11B and reg 6A, a different and stricter licensing regime is created in relation to category D firearms and the higher penalty is imposed in respect of a breach of that regime. It seems to me that there is no inconsistency between that regime and s 19.

23 Finally, it is submitted that if reg 26 is valid, it gives the applicant a complete defence in that his dealer's and repairer's licences mean that the firearms in question are "licensed under the Act". As the applicant and Pullin J observe, under the scheme of the Act, it is actually persons who are licensed, rather than firearms which are licensed. If that is so, then one answer in relation to reg 26(2a) might be that such a firearm cannot be licensed, the Act not providing for it, and that no person would have a defence.

24 However, the Court's task is to give some content to the expression "if the firearm is licensed" under reg 26(2a). It seems to me that Pullin J's interpretation in pars [24] to [27] is the correct one. As his Honour notes, it can be seen from s 16 of the Act that, in some cases, a licence must identify the specific firearm with which it is concerned. A licence nominating a specific firearm would appear to me to be the provision which comes closest to being one actually providing for the licensing of a firearm under the Act. Dealers' and repairers' licences are not licences which name and identify the firearms with which they are concerned. They would therefore appear to be licences which license persons, rather

than providing for any firearm to be "licensed under the Act" as reg 26(2a) requires.

25 In any event, as the respondent points out, a dealer's licence only authorises possession of a firearm for the purpose of dealing in it, dismantling it for parts or arranging for the repair and servicing of it by the holder of a repairer's licence, and a repairer's licence is confined to authorising possession for the purpose of repairing that firearm. There is nothing in the evidence in this case to suggest that the applicant's possession was for either of those purposes.

26 On the contrary, the evidence was that these firearms had been located on top of a sea container. The applicant had at first said that there was nothing on top of it except packing boxes. However, when they were found, he said that they were his, and that he had had them for "about 10 years". What was done by the applicant with the firearms was not therefore "in accordance with the licence" for the purpose of reg 26(2a).

27 I would refuse leave, as in my view none of the matters raised by the applicant should lead to any of the appeals succeeding.

28 ROBERTS-SMITH JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.

Beaton v Wray-Watts [2005] WASCA 114

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (48 paragraphs)

Beaton v Wray-Watts [2005] WASCA 114 (17 June 2005)

BEATON -v- WRAY-WATTS [2005] WASCA 114 (17 June 2005)

Ultra vires argument - SJA 1025, 1026 of 2003

Parties

Cases Cited (2)